Punishing immigrants

The government is going after nonviolent foreigners in a big way. You call this reform?

March 15, 2010|By Robert Koulish

Who would have thought that Team Obama would make "driving while immigrant" an enforceable offense?

While President Barack Obama continues to give lip service (37 words in the recent State of the Union address) to immigration reform, his administration's embrace of zero-tolerance enforcement strategies reveals a remarkable lack of concern about the repressive criminalization of immigrants. This embrace belies the spirit of reform that the White House trumpeted last week as the president met with U.S. Sens. Charles Schumer and Lindsey Graham and activists in advance of the likely attempt this year to reform a profoundly broken immigration system.

Already, the taxpayer has anted up $1.5 billion in fiscal 2010 for Immigration & Customs Enforcement's clumsily titled Agreements in Cooperation in Communities to Enhance Safety and Security programs, or ACCESS.

ACCESS is an umbrella scheme of about 14 federal programs that ICE coordinates with state and local law enforcement. Because of it, apprehending people through the criminal justice system has become ICE's preferred way of identifying undocumented immigrants: any foreigner -- whether undocumented immigrant, lawful permanent immigrant, student/tourist or refugee -- who is stopped, questioned and/or arrested by the police risks detention and removal from the U.S.

Consider the Criminal Alien Program (CAP), which is the most pervasive and largest ACCESS program. According to the ICE Web site, CAP is supposed to identify dangerous criminal aliens -- pedophiles, drug-runners, murderers and rapists. In reality, however, most resources are exhausted going after Class B & C misdemeanors. Of the 500,000 persons ensnared in CAP since 2006, most had no criminal convictions, and most deportees were removed for nonviolent offenses.

By colluding with local law enforcement, CAP earns its reputation as the hidden nightmare of the ICE enforcement regime. It is a "force multiplier" that relies on 1) local cops to enforce federal immigration laws, a subversion of constitutional principles; and 2) technology to provide a virtual presence in almost every local law enforcement precinct in the country, which is downright Orwellian.

Although no system involving immigration is airtight, this pipeline from initial police interaction to being detained by ICE is surprisingly efficient.

In the pre-CAP days, local law enforcement could check a suspect's name against an FBI database. With CAP, the suspect's identity is also checked against a series of Department of Homeland Security databases. If the suspect has an "immigration history," the name is flagged, and ICE puts an immediate "detainer" (hold) in the criminal alien's arrest file. The hold has a punitive effect: It has been credited with increasing the amount of time an immigrant spends in custody, the amount of bonds, and conviction rates. It also facilitates the immigrants' transfer into ICE custody within 48 hours of the resolution of the criminal case.

In other words, by creating two distinct criminal processes -- one for citizens and another, more punitive one for suspected "criminal aliens" -- ICE detainers violate the fundamental fairness principle of criminal procedure. Although citizens, particularly those who are stopped wrongfully or for some small-bore misdemeanor, are likely to be released outright or with a minor fine, foreigners are disappeared into a Kafkaesque procedural maze, fending off complicated allegations of both local and federal wrongdoing (usually without an attorney) and then facing detention and deportation.

The term, in fact, seems to include any immigrant who is stopped by a cop and who thus enters the criminal process. Since the immigrant is flagged with a detainer well before guilt or innocence is determined, the term "criminal alien" amounts to the latest stigmatizing tactic in ICE's strategy of zero-tolerance policing.

The Obama folks figure that showing they are tough on enforcement is a small price to pay for comprehensive immigration reform. They are wrong: Even if comprehensive reform advances, ACCESS programs will undermine the president's stated desire to establish a more humane immigration system. By enabling ICE to warp the criminal process as a pretext for identifying and removing immigrants, the administration subverts the rule of law. That is a huge price to pay for reform.

Robert Koulish, the author of "Immigration and American Democracy: Subverting the Rule of Law" will be a Visiting Senior Fellow at the Center for American Politics and Citizenship at the University of Maryland, College Park. His e-mail is rkoulish@gmail.com.